Tag Archives: history of borders

How did we get here? Chinese Exclusion Act buildup (1848-1872)

When co-blogger Chris Hendrix started off a series a couple of years ago on the origins of immigration restrictions, he fittingly began with the Chinese Exclusion Act (1882), looking at the arguments made for the act at the time. He examined them both the evidence available at the time and the evidence that has emerged since then. In a subsequent post in the series, I briefly examined the early years of the implementation of the Chinese Exclusion Act (1882-1910). While both these posts examined some aspects of the Chinese Exclusion Act in some detail, there is a lot about the history and aftermath of the Act that went unexplored.

Recently, I had the opportunity to create a number of Wikipedia pages on topics related to the Chinese Exclusion Act: Chae Chan Ping v. United States, Angell Treaty of 1880, Chy Lung v. Freeman, Fong Yue Ting v. United States, and others. As I worked on these pages, I familiarized myself more with the situation surrounding the Chinese Exclusion Act. I became more convinced that a more in-depth look at the Chinese Exclusion Act would help shed light on the modern border control regime.

I therefore intend to do at least three more posts on the subject. The current post will focus on the key developments and tug-of-wars that occurred until about 1872 (with passing mentions of trends that would continue into the late 1870s). A later post will discuss the more eventful years starting 1873. The year 1873 was marked by the Panic of 1873, the beginning of an economic downturn in the United States. The economic downturn was likely a contributing factor to increased anti-Chinese sentiment over the coming years, and key legislative and judicial developments related to immigration happened beginning 1875.

This post looks at the “keyhole solutions” used by state and local law enforcement in California before the federal government got on board with significantly restricting immigration.

Table of contents

Limitations of my analysis

Perhaps the biggest limiting factor to the quality of my analysis is the fact that such little data is maintained about that time period; in particular, about how ordinary people (both Chinese and the others in California) perceived the situation at the time. There is no Twitter, Tumblr, or Instagram to gauge public sentiment. There was no equivalent of Gallup polls. There were few newspapers and even those that existed don’t have all their archives available to peruse. Therefore, apart from actual legislative or judicial records, the main guidance present is various summaries provided by historians, who are in turn relying on observations penned by a few people, who may in turn have their own biases.

The lack of good resolution on who was thinking what leads to broad-brush generalizations in many parts of the text. I talk about the “Chinese” and “whites” but both groups were probably quite heterogeneous in terms of their habits, attitudes, beliefs about the other group, legislation they supported, etc. A more able historian with more time to research the issue and more space to devote to describing it would be able to pick nuances better. As such, please take any general statements I make about ethnic groups below with a large grain of salt: they are a third-hand summary of very incomplete data examined through possibly biased lenses.

How my thinking has evolved

Writing this post has led to some minor updates in my thinking. Here is a summary, that you can read without having to read the whole post.

  • As I had previously noted in “Why was immigration freer in 19th century USA?”, there were no restrictions on immigration till the late 19th century (the Page Act of 1875 being the first federal regulation, and the Chinese Exclusion Act was passed in 1882). Even then, the first restrictions applied only to Chinese immigration. But I now see that the sentiment to oppose and restrict migration existed far in advance of actual restrictions, and the reason that it took so long to restrict immigration was mostly the federal structure of governance combined with the poor connectivity of California with the rest of the United States.
  • This post also makes me more confident of observations I had made in my post on South-South migration and the natural state: despite the virulent and hostile response to Chinese immigration in California, migration remained freer and arguably closer to a state-of-nature than it does in the modern world.
  • My feelings on “keyhole solutions”, and in particular, on the question of their feasibility and stability, have evolved a bit. I am now more convinced that they are not a stable equilibrium that placates those favoring restrictions. One reason is that some keyhole solutions, particularly those involving taxes and tariffs, can hurt migrants so much that their subsequent impoverishment makes them look even worse on social indicators to the rest of the population (a point related to what co-blogger Nathan alluded to in his post the dark side of DRITI). Another is that keyhole solutions need to be extremely punitive (at risk of impoverishing migrants and making them look worse) to make a significant dent in migration trends, to the level that would satisfy those who seek restrictions. Keyhole solutions at an intermediate level can generate revenue for government and can address rationally calibrated concerns about immigration, but they can’t really solve the public’s general aversion to migration. Keyhole solutions might work better in quasi-democratic settings. In quasi-democratic settings, not every individual policy choice is debated. Rather, as long as the quasi-democratically elected leaders’ overall performance meets natives’ expectations, they buy into the policy package despite not liking parts of it. A country like Singapore might be an example.
  • Seeing the effects of migration isn’t guaranteed to drive one in favor of migration. In the case of events prior to the Chinese Exclusion Act, in fact, exposure to Chinese migrants led people to oppose it. California, which experienced the Chinese first, turned anti-migration first. Later, when the Chinese arrived in the Eastern cities, anti-Chinese sentiment also spread there. This does not mean that exposure to migrants always leads to anti-migration sentiment, nor does it mean that such anti-migration sentiment is factually grounded. Rather, we have to keep in mind existing narratives and biases that have been developed, in addition to the characteristics of migrants and natives, and results on sentiment towards migration could go in either direction. I don’t think nativist backlash is inevitable, but writing this post has led me to somewhat increase the importance I place on it as a force to reckon with.

First, they came for the Chinese

John’s post on tearing down Chesterton’s fence offers a good bird’s eye view of how immigration restrictions originated worldwide. While researching the subject, I noticed that in at least two other English-descended countries (Canada and Australia) the first significant immigration regulations appear to have been explicitly targeted at the Chinese, as I noted in an Open Borders Action Group post.

The situation in Australia closely paralleled the situation in California. In both cases, large numbers of Chinese moved to the area around 1850 in search of gold. In both cases, resistance to Chinese started off with native miners and labor unions of “natives” (i.e., whites, rather than the indigenous population), but gradually spread to the rest of society. Continue reading “How did we get here? Chinese Exclusion Act buildup (1848-1872)” »

Tearing down Chesterton’s fence: the bigotry of border controls

A common reaction to the case for open borders is: that’s well and good, but immigration controls were established for good reason. Every country has them after all. Sure, the practical benefits of open borders look good, and there are plenty of ethical reasons why we shouldn’t close the door on foreigners. But why did our ancestors choose to do so then? Wouldn’t it be unwise to tear down the walls they erected without first ensuring their rationales don’t still apply today?

This kind of political reasoning is sometimes labeled Burkean conservatism. Edmund Burke, an Irishman who migrated to England, is often regarded as the founder of modern Western conservatism. Contrary to what the conservative label may suggest, he was no opponent of change; in criticising the French Revolution, he wrote: “A state without the means of some change is without the means of its conservation.” Burke merely preferred a bias in the political process against change: you shouldn’t change things without a really really good reason. I don’t think of myself as a political conservative, but this seems like a fairly reasonable principle.

A metaphor often used to illustrate this principle is Chesterton’s fence, attributed to the English writer G.K. Chesterton:

There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, “I don’t see the use of this; let us clear it away.” To which the more intelligent type of reformer will do well to answer: “If you don’t see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.”

This paradox rests on the most elementary common sense. The gate or fence did not grow there. It was not set up by somnambulists who built it in their sleep. It is highly improbable that it was put there by escaped lunatics who were for some reason loose in the street. Some person had some reason for thinking it would be a good thing for somebody. And until we know what the reason was, we really cannot judge whether the reason was reasonable.

So before we tear down the walls our governments have erected, we should ask why these walls went up in the first place. This is not a question that is new to us, mind you; we first discussed it on this blog two years ago. The answer to Chesterton’s question depends, of course, on which country you’re a citizen of.

In my case, as a citizen of Malaysia and Southeast Asia, we have no tradition of walling up and sealing our borders. Our borders themselves were drawn in part because Napoleon invaded the Netherlands, not because of any organic movement towards fixed borders on our part. The original reason our governments established border controls was because our former colonial masters had set these up. It seemed like just one of those things you do once you’re an independent country.

So, where did the idea of border controls and deportations for our colonial masters come from? Well, in the case of Malaysia’s former colonial power, the United Kingdom, the first notable instance of the mass deportation and collective punishment of migrants was when King Edward I expelled all Jews from England. A few were allowed to return for visits on temporary visas, but between 1290 and 1657, all Jews residing in England were actually illegal immigrants. So at least in the case of the UK, border controls were originally rooted in racial and religious bigotry, not any sound policy reason.

This is not unusual. The United States, that nation of immigrants, first began to regulate immigration with the Page Act of 1875, a law whose primary objective was to exclude Chinese immigrants. It was followed by the Chinese Exclusion Act of 1882, which doesn’t really need any explanation. Many founding principles of US immigration law were established by the Chinese Exclusion Case — again, the name needs no explanation. The case still stands as good law today, even though scholars dismiss the actual reasoning therein as racist and unsound. Later expansions of US immigration controls explicitly aimed to exclude southern and eastern Europeans, especially those of Jewish descent.

The US is not alone in this regard. You can trace a similar history for almost every Anglo-Saxon “nation of immigrants”. Australia’s first immigration law was intentionally drafted to exclude Asian and African-American immigrants:

In 1901, 98% of people in Australia were white. Australia wanted to remain a country of white people who lived by British customs. Trade unions were keen to prevent labour competition from Chinese and Pacific Islander migrants who they feared would undercut wages. One of the first pieces of legislation passed in the new Federal Parliament was the Immigration Restriction Act. Now known as the infamous White Australia Policy it made it very difficult for Asians and Pacific Islanders to migrate to Australia…

The Immigration Restriction Act enabled the government to exclude any person who ‘when asked to do so by an officer fails to write out at dictation and sign in the presence of the officer, a passage of 50 words in length in a European language directed by the officer’. The Dictation Test could be administered to any migrant during the first year of residence.

It was initially proposed that the Test would be in English, but it was argued that this could discourage European migration and advantage Japanese people, and Americans of African descent. Instead, any ‘European language’ was specified.

This law establishing the “White Australia” policy was one of the very first passed by the Australian federal Parliament, and laid down some of the founding principles of Australian constitutional law. Looking across the Tasman Sea, here is how the New Zealand government describes the roots of its immigration controls:

Over the years, laws and regulations have been used to restrict or prevent the entry of ‘undesirable’ individuals or groups. Making New Zealand British and keeping the country white were the goals of immigration policy until the early 1970s. People from Britain have been actively recruited, while people perceived as ‘different’ have been kept out.

Strong imperial sentiments in the colonial period, and views about race through the 19th and much of the 20th centuries largely explain the purpose of New Zealand’s immigration restrictions.

Fellow Commonwealth country Canada on the other hand founded its immigration laws on the principle of promoting open immigration and safeguarding the passage of migrants. Score one for Canadian niceness?

Well, less than twenty years afterwards, the Canadian government, horrified by how many Chinese people were moving to Canada, furiously backpedaled. New laws enshrined state-sponsored discrimination against and exclusion of Chinese immigrants: these were the first major federal controls on immigration in Canada. Here’s how one Canadian newspaper characterises the history of Canadian immigration controls:

Troper points to a series of notorious examples of past discrimination in Canada’s immigration policy: the infamous Chinese head tax; the exclusion of black Oklahoman farmers from coming to Canada in 1910; the refusal in May 1914 of most of the 375 Indians aboard the Komagata Maru after landing in Vancouver, where the ship spent two months before it was ordered back to India; the exclusion of Jewish immigrants from the 1920s until after the Second World War.

These and other examples of discrimination paint a picture of a country — not unlike others around the world at the time — that was xenophobic and saw itself as an “Anglo-British outpost of British civility,” Troper says.

According to the Canadian Council for Refugees, specific measures taken by immigration officials included: an amendment to the Opium and Narcotic Drug Act to deport “domiciled aliens” with drug-related convictions (directed against the Chinese) in 1922; the prohibition of all Chinese immigrants in 1923; refusal of the ship the St. Louis, carrying 930 Jewish refugees, to land in 1939, forcing it to return to Europe — ultimately sentencing three-quarters of its passengers to death under the Nazi regime.

Let us return to my country’s former colonial master, the British. While the first recorded large-scale deportations occurred in 1290, the first recorded immigration legislation was actually the Aliens Act 1793. Prior to 1793, there actually were no legally-required controls or restrictions on foreigners entering the UK. This law imposed a new requirement on foreigners entering Great Britain: they must register their arrival with the government upon entry, and with a local Justice of the Peace. Failure to register would result in jail, pending deportation.

What was the reason for this law? The UK government archives today say: “It was introduced to manage the influx of people coming to Britain to escape the French Revolution.” But in reality, it was enacted to exclude French republicans who might have made their way to Britain, mingling among refugees. Fervent opponent of the French Revolution that he was, Edmund Burke favoured this law.

Curiously, Burke supported the Aliens Act 1793 even though it stripped foreigners of the right to habeas corpus: the right to challenge your detention in court, an ancient legal tradition rooted in the principle that no government may lock someone up and take away their liberty without just cause.

Under the Aliens Act 1793, the punishment for failing to register was not a fine. You could be jailed without bail and deported, without any right of habeas corpus or appeal, simply for failing to register. You could even be a bona fide refugee, with no revolutionary connections, and it would not matter one whit: you had no recourse to challenge your detention or deportation. The law’s own sponsor called it: “a bill for suspending the Habeas Corpus Act, as far as it should relate to the persons of foreigners.”

Did Burke ask himself whether he was unthinkingly tearing down Chesterton’s fence? Probably not; this was decades before Chesterton would be born. But one wonders what Burke was thinking. In 1789, Burke wrote: “Whenever a separation is made between liberty and justice, neither, in my opinion, is safe.” If anything counts as an injustice, surely it must be arbitrarily taking away the basic liberties of an entire class of people — not on the basis of any wrongdoing, but simply because of their condition of birth.

Oh, but it’s just foreigners being deprived of their liberty, you might say. Except that the Aliens Act 1793 was just the precursor to the Habeas Corpus Suspension Act 1794 — which is exactly what it says on the tin. Now nobody in Britain, citizen or foreigner, enjoyed the safeguards of the ancient writ of habeas corpus.

It is of course easy to condemn Burke and his Parliamentary colleagues in retrospect. If we had been in their shoes, facing possible insurrection fomented by, or invasion from, Revolutionary France, we too may have passed the same suspension of habeas corpus.

But this incident illustrates an important principle that guides how I think about immigration law: if a circumstance so endangers our state or society that we must restrict basic freedoms, then so be it. But if such a circumstance is only dangerous enough to warrant invading the rights of the peaceful stranger in our land — whilst leaving potential traitors, terrorists, or criminals amongst our own citizenry unaffected — then I am much more skeptical. Either the situation is so dire that everyone’s liberty must be put at risk, or it is simply not that dire.

Of course, there are fine gradations in between “that dire” and “not that dire”. And the more dire the situation is, the more justified and less arbitrary some distinctions based on nationality or even ethnicity become: how strongly would one object to Polish controls on German entry in the days leading up to the Nazi invasion of 1939? The problem of justice arises when you assume every scenario our governments face is tantamount to that kind of emergency. At some point, you land on a slippery slope that has you deporting Jewish refugees and throwing your own citizens into prison camps.

And while situations like a literal world war may merit restrictions on the movement of foreigners, no sane person can claim we live in such a situation today. When we aren’t at war, and when most of the people seeking entry to our shores are citizens of countries at peace or even allied with us, you can’t simply erect an automatic bar to entry on the basis that governments need extraordinary power to protect us from an invasion that nobody believes is coming.

In spite of this, discretionary and arbitrary immigration controls which assume every immigrant poses a dire threat to our society, guilty until proven innocent, are the laws of almost every land today. I submit that such paranoid discriminatory laws are all out of proportion to the risk immigrants pose. Of course anyone can name an immigrant who has done something wrong. You can select any sufficiently large group of people and find all kinds of criminals and wrongdoers amongst them. But the burden of proof rests on the restrictionist to show that arbitrarily excluding most foreigners is in fact a sound and proportionate policy.

This is quite Burkean, really: mind you, the alien registration requirement which Burke supported was later repealed after the crisis had passed. A literal Burkean immigration policy would be open borders, with the temporary suspension of habeas corpus in times when invasion or insurrection seemed imminent. The UK’s first immigration controls were only enacted over a century later with the Aliens Act 1905.

The roots of this law? Well, it came after the passage of anti-Chinese immigration laws in colonies like Canada and Australia. It explicitly borrowed wording and diction from the United States’s own anti-Chinese immigration statutes. Like Edward I’s Edict of Expulsion in 1290, its primary target was immigrant Jews.

Although on this occasion, the government had enough scruples to avoid any explicit reference to race, as historian Alison Bashford and law professor Jane McAdam document, contemporaries understood the law’s definition of migrant to be aimed at Jews originating from eastern Europe, and the law was incessantly criticised for its anti-Semitism. More than that, opponents explicitly attacked the law for uprooting ancient British tradition (emphasis added):

For many British parliamentarians, then, the introduction of the Aliens Act was not merely a natural response to a world of increasing global movement (and regulation of that movement); it was a highly controversial step. It was considered ‘drastic’ and ‘revolutionary in its character,’ even by those who put forward the various bills. Many considered that the principle of free movement, and, accordingly,the tradition of having no entry regulations, was part of what distinguished British practice; even part of what constituted British “liberty.”

The response of its advocates, such as Herbert Asquith, who would later serve as British Prime Minister? To embrace these accusations. Bashford and McAdam (emphasis added):

Asquith spoke in support of the bill, but nonetheless recognized its significance: “This Bill, it must be conceded, is an entirely new departure in legislation, for it gives to an officer of the Executive, by his own act, without any reference to a Court of law or to judicial procedure, power to prohibit admission to these shores of any person who is not a subject of the Crown, provided he comes within certain categories.”

The suspension of habeas corpus, limited to times of great danger in Burke’s day, now became an everyday occurrence for any foreigner daring to enter Britain. The revolutionary and radical arbitrary dictatorial power of the government to exclude foreigners at will was now enshrined. Today, it has been so commonplace for the past century to the point that we hardly think of it.

So if we think of immigration restrictions as Chesterton’s fence then, how should we characterise the rationale for erecting this fence? If we look at the raw texts of these statutes, we find many references to excluding paupers, the diseased, and the criminal. We can debate the extent to which these exclusions are just, but many of them make some sense on the face of it. But if we look at the intentions of the men (and women, to the extent they were involved) who drew up and bequeathed to us the founding principles of modern immigration restrictions, we find some of the worst and most blatant injustices in the history of mankind.

Immigration laws were established in theory to promote public safety and order. But in reality, their promoters drew them up to exclude people solely because of the colour of their skin, or the religion they practiced. You merely have to scratch the surface of these laws to uncover some of the ugliest expressions of base bigotry and prejudice, be it against the Chinese, the Japanese, the Italians, the Irish, the Jews, and so on. Little wonder that journalist Stephan Faris in his review of the modern border regime could write of things coming full circle, with South African apartheid using “immigration laws” as a figleaf to disguise blatant racism:

To be sure, there are differences between the global system of immigration restrictions and South Africa’s attempt to entrench white privilege through the partitioning of its territory. But it should give us pause to think that when the architects of one of history’s most recognized evils set out to codify their system of injustice, they looked at our borders and passports and saw a lot to like. Intentions aside, the biggest difference between the two is that the South Africans wanted to draw the boundaries and assign the nationalities. We make do with the existing ones.

It may of course be true that serendipitously, these laws founded in racism and unempirical prejudice are in fact beneficial and good. But let’s have an open conversation about the benefits of these restrictions then. Let’s place the burden of proof where it belongs: on those who want to prop up those legal walls and fences erected to preserve and entrench bigotry.

Once we have established the original rationale for these laws and found them wanting, we can no longer resort to tradition as reason enough to keep them. Whatever your views on the issues of gay marriage and family rights, I think US judge Richard Posner’s pointed questions in the litigation of this issue apply all the more to border controls:

Posner: What concrete factual arguments do you have against homosexual marriage?

Samuelson: Well, we have, uh, the Burkean argument, that it’s reasonable and rational to proceed slowly.

Posner: That’s the tradition argument. It’s feeble! Look, they could have trotted out Edmund Burke in the Loving case. What’s the difference? . . . There was a tradition of not allowing black and whites, and, actually, other interracial couples from marrying. It was a tradition. It got swept aside. Why is this tradition better?

Samuelson: The tradition is based on experience. And it’s the tradition of western culture.

Posner: What experience! It’s based on hate, isn’t it?

Samuelson: No, not at all, your honor.

Posner: You don’t think there’s a history of rather savage discrimination against homosexuals?

The only distinction here is that border controls aren’t even a real tradition. The kind of controls on the scale first adopted in the late 19th century and early 20th century didn’t exist in Burke’s day. Massive border controls that arbitrarily restrict human movement purely on the basis of a condition of birth are a modern innovation. And, to borrow Judge Posner’s words, they are an innovation rooted in hate and savage discrimination.Anti-Japanese/-Indian rally

Arizona farmers protest Japanese and Indian farming in the state, 1934. Source: Americana, the E-Journal of American Studies in Hungary.

Immigration controls are an injustice that we must tear down as far as we can. “This policy benefits our race” or “this policy benefits our country” are not reasons enough to excuse a preventable injustice. As Burke himself said:

Justice is itself the great standing policy of civil society; and any eminent departure from it, under any circumstances, lies under the suspicion of being no policy at all.

In 1879, Chinese-Australians Lowe Kong Meng, Cheok Hong Cheong, and Louis Ah Mouy authored a pamphlet lamenting the racist immigration laws that uprooted their freedom of movement and residence. Today, in this era of vast migration restrictions, their words ring true literally more than ever before:

In the name of heaven, we ask, where is your justice? Where your religion? Where your morality? Where your sense of right and wrong? Where your enlightenment? Where your love of liberty?

We recognise today the great wrongs that our border controls once visited upon the Chinese, Jewish, or other migrants of the day. But we preserve the same principles of dictatorial discretion and arbitrary discrimination that marked the very exclusionary and unjust laws which victimised these people. There may be good reasons to preserve border controls. But unless you unreservedly embrace prejudice as a sound principle for making policy, Chesterton’s fence is not such a justification. Rather than sound and solid policy, the foundations of our border controls are just rotten cesspools of hatred and bigotry.

The image featured at the top of this post is of an exhibit from the Museum of Chinese in America, depicting a poster from the late 19th century advocating the exclusion of Chinese immigrants. The photograph of the exhibit is from Robin Lung.

How my day in Wagah led me to rethink borders

This post continues the personal anecdote series on the site. The series includes pieces both by people who are active supporters of open borders and by people who aren’t directly involved but have formed opinions on the issue informed by their personal experience. This blog post is of the latter kind. The author is a middle-aged female who has lived all her life in India, and the post is being published anonymously at her request.

As a young schoolgirl growing up in India, I assumed borders were fixed and necessary. In geography classes I drew them on maps as dark lines and then shaded and labeled the two sides in different ways. I considered foreign countries as the “other,” especially Pakistan, because I had lived through two Indo-Pak wars. Soon after the 1965 war, when my father was transferred to a military station not far from the border, neighbors showed us a bombed church and the cellars they had used during air raids to stay safe. During the dramatic 1971 war that split Pakistan, I was older and living in Delhi. I remember rushing around putting off lights when the siren sounded. And huddling over a small transistor radio all day to get updates. Later, I was one of the school kids who lined the road to welcome the leader of the newly formed Bangladesh, Sheikh Mujibur Rahman when he arrived in Delhi to meet the Indian Prime Minister, Indira Gandhi. Even otherwise, life was full of comparisons with Pakistan, and quarrelling kids would be told not to fight like “India-Pakistan.”

It took a trip to Punjab with my parents to get me thinking about what borders mean.

I was in my teens and visiting Amritsar with my parents when my father suggested going to Wagah (on the border with Pakistan) because he had some work there. This was just a few years after the 1971 Indo-Pak war and I asked my father whether it would be safe. He laughed.

By Kamran Ali
The evening flag lowering ceremony at the India-Pakistan International Border near Wagah. Taken from the Pakistani side. By Kamran Ali. Source. Licensed CC-BY-SA 3.0

My mental image of what a border should be like was vague and uninformed—something impenetrable, something clearly separating two countries that had fought wars. The border I saw the next day was so commonplace that I can’t remember any details. What remains in my memory is my utter disbelief that the land on the other side of the gate, so nearby and similar, was Pakistan. Men from the two sides were exchanging mail bags in a normal, everyday manner.

My mother noticed my surprise. Half-exasperated, half-amused, she asked, “What did you expect?”

I felt downright foolish. What difference had I expected to manifest itself suddenly across a border? But surely a border should be more secure. I asked her why we didn’t have tall walls with barbed wire and broken glass and with the army guarding the entire length of the border. She asked me if I had thought about how very long the border was and whether that would be practical (It’s 2900 km, according to Wikipedia).

On the way back, and for the weeks that followed, my mind kept slipping back to that glimpse of the Wagah border.

All our relatives and friends were from North India and had been affected, in small or big ways, by the 1947 Partition of India but they rarely talked about their tragedies and losses except in hushed tones when they thought the children were not listening. My mother, for example, had spent part of her childhood in a city now in Pakistan. I knew many families that had hurriedly migrated to India during the Partition. I tried imagining a village getting split into two because a border now ran through it, families either divided across countries, or forced to leave their homes, abandoning most of their belongings and objects gathered over generations. The tragedies depicted in fiction based on the Partition moved out of the pages of story books and into my heart.

Back then, in the 1970s, we had no Google search or Wikipedia pages to satisfy our fleeting curiosity. We had to scout around for relevant books and articles, or pester elders, and our curiosity had to cross a threshold to make such perseverance worthwhile. Yet, even though I moved on to other areas of interest, there was a shift in how I thought, not just about Pakistan, but about countries, borders, immigration, and patriotism in general.

I began realizing that nations may be created overnight based on emphasizing some aspects of identity (such as language spoken, religion, borders of older kingdoms, geographical features like mountains, rivers, and seas) through hastily re-arranged populations and enforced borders but the emotions of people are not so easy to change and that a lot of the silence or rhetoric around that division is based on frustration, bewilderment, pain, and loss. Citizenship began seeming more like chance, a combination of history and time and space, rather than a person’s intrinsic characteristic, and while I appreciated that countries needed borders and laws around them, I started thinking of the rigidity and emotional fervor around the sanctity, shape and impenetrability of borders as excessive.

I had changed in small ways. For example, while watching a match of cricket, a sport passionately followed both in India and Pakistan, I cheered more often based on the quality of the game rather than the country playing. India’s performance in a match did not seem tied to my core identity. I no longer felt either “proud” or “ashamed” of being an Indian. My being Indian was just a fact of my life. There seemed no logical reason to believe that my country was better than others merely because I was born here. Paradoxically, I was more open-hearted in my appreciation of significant Indian milestones because that was based on genuine evaluation rather than pre-scripted loyalty.

Many of my peers had started going abroad for higher education and jobs driven by practical factors like available opportunities and quality of life. They were opting for resident status outside India, things like green cards or citizenship. I wondered how they felt while taking the oath of citizenship of another country and how they emotionally reconciled it with a childhood spent singing the Indian national anthem, and expressing pride in India’s culture and heritage.

Much has changed in the four decades since I saw the Wagah border. Information is more easily available. Borders seem superfluous when surfing the Internet, except when countries ban certain sites, a rude reminder of reality. We know far more about life in other countries than we did a few decades ago, and many prominent products and brands are available in all countries. International travel is easier and more common, and many families are scattered across the globe. When my peers express fears that their children may not return to India, I tell them that our children’s generation does not view moving between countries and settling in one country as against another as a major emotional decision. They choose their location based on multiple factors that include quality of life, type of jobs, convenience, and so on. That they were born or brought up in a country is just one of the several criteria.

The hitches in mobility across borders jar more in this interconnected world. Time and again I hear of persons working outside India being tense because their stay abroad depends on that country’s rules and quotas rather than on their productivity and contribution to its society.  That seems a suboptimal way for the world to run, maybe suboptimal even for the country enforcing the rules.

To me, borders seem somewhat arbitrary, whether of countries or smaller geographic units. Once, on a visit to a small and beautiful hill station (in North India) I saw large notices declaring that “outsiders” could not buy land and build in that town because that would involve chopping trees and clearing land, thus spoiling the natural beauty. Interestingly, the officials in the town’s governing body had moved to that town just a few decades ago, and had bought and cleared land there to build their elaborate houses. It seems self-serving when current residents of a place label future migrants as outsiders, although they, too, are migrants.

Borders don’t just demarcate and divide and keep people out, they are the cause of simmering or outright conflict. Reminders of their existence pop up at unexpected times, even for persons like me who rarely cross borders.

Recently, when preparing a presentation for an international conference, I was looking for a map to illustrate country-wise data. I had often read of some issues of international magazines getting banned in India because they depicted the Indian map wrongly. On surfing the Internet I realized that this (‘wrong’) depiction was the one used all over the world. If I selected a map consistent with what my fellow-countrymen expected, the map would not match what persons from other countries expected, especially those from neighboring countries. And if I used the one that the international audience was familiar with, the Indians would be uncomfortable.

On a somewhat philosophical note, it puzzles me that people assume that borders are a given, that they must exist, and that the only debate is on who can cross them and when and how. My attempts to discuss issues around borders with peers have resulted in my being stared at as though I were weird, maybe even (gulp) unpatriotic and thus a bad person.

Many countries, especially democracies, have legislations prohibiting discrimination based on race, age, religion, and gender. Discussions on topics like gender-discrimination, racism, ageism, and communalism can be openly found–some emotional and even confrontational, and others well-reasoned and insightful.

But discrimination based on place of birth and citizenship is accepted as reasonable, moral, and good. Each country wants to guard its resources and therefore promotes patriotism and pride in one’s country through the education system, laws, and other mechanisms. Society promotes this. As a result, we consider the welfare of our country more important than that of the world as a whole.

I am now in my fifties and I have not been outside India except for a few, very short trips. My current day-to-day life is not particularly affected by the existence of borders or the rules around them. I do not know enough about “open borders” to take a position on their desirability or wisdom. This is not one of the causes that I am active in. But I consider this area important enough for serious discussions, and not just confined to activists or people directly affected by immigration. Such discussions could be part of developing systems that work for what is better for the world as a whole.

Related reading

This section was added by the Open Borders editorial staff to provide more background for readers interested in the material,
See more posts in our personal anecdote series.

Other posts related to themes touched on in the piece:

Some related site background pages:

  • We use the term citizenism (coined by immigration critic Steve Sailer) to describe the idea that government policy, particularly immigration policy, should favor the interests of current citizens.

For more on how the Indo-Pak border was actually drawn, check out Wikipedia’s page on the Radcliffe Line.

Here’s an advertisement by Google Search intended to highlight the power of technology to help people reunite across borders:

Note: The author has requested that the article not be republished without consent, and be published under standard copyright rather than using a Creative Commons license. Due to technical limitations of our software, the piece may show up as marked with a CC-by-NC-ND license.

How Did We Get Here? Chinese Exclusion Act — Implementation (1882-1910)

On May 29, 2013, co-blogger Chris Hendrix started off a very promising post series to explore the origins of immigration restrictions, the rationales used when introducing them, and how they were gradually modified into their present form. His first post in the series took an in-depth look at the Chinese Exclusion Act of 1882, the first large-scale restriction of immigration to the United States after nearly a century with nearly unrestricted migration. Chris went into considerable detail into the rationales proffered for the law, and found them flawed in light of both the evidence available at the time and the evidence that would accumulate over the coming decades.

With Chris’s permission, I’m taking this very important series over from him. This post will look at the Chinese Exclusion Act, but from a different angle: how was it implemented? As the United States’ first foray into a systematic control of a border, what legal ambiguities did it give rise to, and how were those resolved? What aspects of the modern immigration control regime, in the US and elsewhere around the world, can be traced to the way these ambiguities were resolved?

Let’s first get an idea of the sort of world that existed at the time.

A different world

Migration back in the day was qualitatively similar to South-South migration today: relatively unregulated and unprotected. But this is part of a broader feature of society back then: goverment was less centralized and far less powerful and all-knowing than it is today:

  • Passports did exist, but most people didn’t bother to get them.
  • Social Security, and Social Security Numbers, didn’t exist.
  • There was no federal income tax.
  • Since there was no tax withholding, employers had no federal reporting requirements, and they didn’t have reporting requirements in most states either. In other words, the state didn’t have a reason to record most work activity.
  • There was no Green Card, or Green Card-equivalent. Non-citizen permanent residents had no document that directly established that status for them.
  • There was no nation-wide interior enforcement for immigration law.
  • Entry by land from Mexico and Canada was largely unrestricted.

So what did exist?

  • Ports of inspection for people and goods coming by sea, from the Atlantic or the Pacific. These ports were not intended primarily for immigration enforcement, but were mainly used for customs enforcement. At the time of the Chinese Exclusion Act, there were, as far as I am aware, no designated ports on the West Coast exclusively for immigration enforcement. Angel Island, the main such port, would become active only in 1910. The corresponding port in the East Coast, Ellis Island, would open only in 1892, though there were other immigrant processing stations before that on the East Coast, such as Castle Garden.
  • City officials in various cities could act as de facto immigration enforcement. They could ask residents of the area for documentation proving that they were citizens (this would typically involve a birth certificate that would need to match with the city’s records, or a demonstration that the parents were US citizens, or a proof of naturalization). Enforcement would therefore be zealous only in places where the natives and the officials representing them cared enough about the matter. In practice, therefore, immigration enforcement followed the principle of subsidiarity — even though the legislation was determined at the federal level, interior enforcement was largely a local matter.

Racism, citizenism, territorialism, and high versus low skill

All the elements found in the modern border control regime could be glimpsed in the Chinese Exclusion Act as it played out. First off, the act was overtly discriminatory in a racial and ethnic sense. It could be argued that many immigration laws today are racist, albeit in many cases they are not overtly so. But the racial/ethnic component to the Chinese Exclusion Act was both more morally acceptable and palatable and more practically enforceable.

If you are trying to enforce immigration law, that requires a lot of potential violations of civil liberties, not only for the immigrants, but also for people who might be suspected of being immigrants. The Chinese Exclusion Act explicitly restricted itself only to targeting (a subset of) the ethnic Chinese. This subpopulation was sufficiently distinctive in appearance, customs, and linguistic habits. Thus, the collateral damage inflicted by the law on those not in violation of immigration law was limited to other ethnic Chinese.

In today’s world, it is possible (though still far from easy) to carry out some semblance of border and interior enforcement targeted at potential immigrants that has minimal collateral damage for citizens, without being so explicitly racially targeted. For this, we can thank (or blame) the record-keeping surveillance state that can track people much better. At the same time, it is somewhat harder to use explicit racial/ethnic targeting, because of greater levels of ethnic mixing. People of different national origins no longer look so obviously different, thanks to some degree of global convergence in culture, and also (to a less extent) greater interbreeding leading to many many more intermediate forms of physical appearance.

The racism of the law was therefore necessary for it to get off the ground, and for immigration enforcement to get an early testing bed while leaving the majority of the population unaffected. Just as the income tax started out as a tax on the super-rich and gradually grew to cover a majority of income-earners in the United States (and most other countries) immigration enforcement sharpened its ax on a relatively vulnerable, distinctive, and reviled population before spreading its wings to society at large. As they say, First they came for the Chinese. As history.com puts it:

American experience with Chinese exclusion spurred later movements for immigration restriction against other “undesirable” groups such as Middle Easterners, Hindu and East Indians, and the Japanese. The Chinese themselves remained ineligible for citizenship until 1943.

The second interesting emergent feature of the law, as it came into practice, was its citizenism, in more senses than one. First, as Chris described at greater length in his post, the law was justified in terms of citizenist premises, though there was the occasional nod to how it would be good for China as well to keep all its population within. Second, those Chinese who were already citizens continued to enjoy citizenship — at least in principle. They still were at greater risk of getting into trouble (because they were in the ethnic group suspected of harboring illegal immigrants) and they often couldn’t bring family members in, but they still enjoyed the constitutional rights of citizens. They could leave the country and return as they pleased (provided the officer at the port of entry was convinced they were actually citizens, and there were sometimes messups).

Third, the implementation of the law provided the early contours of territorialism: Chinese who had immigrated but not naturalized prior to the passage of the Act were not allowed to naturalize, but they were not required to leave the country. As long as they were physically present in the country, they enjoyed the rights of non-citizens (subject to the caveat of being harassed due to the suspicion). However, if they left the country and tried to return, they could be denied entry. This was formalized in the Scott Act of 1888 discussed later in the post. This was an early precedent for the current regime that distinguishes between entry visas and authorized stays.

Fourth, the high versus low skill distinction emerged in the law. The law banned the migration of skilled and unskilled laborers, but allowed for the migration of people in white-collar professions, if they could get documentation from the Chinese government to that effect, and could convince the officer at the port of entry. In practice, many people in white-collar professions also found it hard to enter due to lack of adequate documentation. This again resembles the current system, where high-skilled immigrants need to, and often fail to, jump through the many hoops needed to demonstrate their high skills.

Continue reading “How Did We Get Here? Chinese Exclusion Act — Implementation (1882-1910)” »

Paul Krugman and the Immigration Act of 1924

In 2006 Paul Krugman, prominent liberal economist and New York Times columnist, expressed concern that low-skilled immigration could threaten the American welfare state.  Due to this supposed threat and the claim that the wages of some Americans were lowered because of immigration, he supported a reduction in the number of low-skilled immigrants entering the U.S. (See here for this site’s page on Mr. Krugman.)

So it wasn’t surprising when Mr. Krugman recently declared that he didn’t support open borders.  What was surprising was that he justified immigration restrictions that were enacted in the early 1920s. He stated that without those restrictions the New Deal in the United States “wouldn’t have been possible,” in part because “…there would have been many claims, justified or not, about people flocking to America to take advantage of welfare programs.” The New Deal of the 1930s, as many readers may know, involved the establishment under Franklin D. Roosevelt of government programs which continue to exist today, such as monetary support for the elderly (Social Security) and aid to poor mothers and their children.

The immigration legislation to which Mr. Krugman referred included the Immigration Act of 1921, which established the first numerical restrictions on European immigration.  It was followed by the longer lasting Immigration Act of 1924, which also involved numerical restrictions and a national origins quota system in which visas were apportioned predominately to immigrants coming from northwest Europe. Maldwyn Jones, author of American Immigration, notes that:

it was American policy which brought to an end the century-long mass movement from Europe. The adoption of the quota system… all but slammed the door on the southern and eastern Europeans who had formed the bulk of the arrivals in the prewar (World War I) and immediate postwar periods. The result was that European immigration slumped from over 800,000 in 1921 to less than 150,000 by the end of the decade. (page 279)

The legislation was in many respects the model for our current immigration system, with its numerical limitations on immigration from individual countries, numerical limitations for certain categories of immigrants,  use of preference groups within these categories, consular control over permission to immigrate, and the creation of the Border Patrol. From an open borders perspective, it was a disaster, ending a long period of generally open immigration from Europe.

Whether or not Mr. Krugman is correct or not that the 1920s immigration restrictions helped to provide a political environment conducive to passing the New Deal legislation, there are two reasons why his support for the restrictions are surprising. One is that the legislation was largely racist. The Immigration Act of 1924 was inspired by racist sentiment and, as noted, discriminated against the immigration of people from eastern and southern Europe, who were perceived by some to be racially inferior. As John Higham has written in Strangers in the Land, as the House of Representatives worked towards the 1924 legislation, the champions of the legislation:

now largely ignored the economic arguments they had advanced in behalf of the first quota law three years before. Instead, they talked about preserving a ‘distinct American type,’ about keeping American for Americans, or about saving the Nordic race from being swamped. The Ku Klux Klan, which was organizing a vigorous letter-writing campaign in support of the Johnson bill, probably aided and abetted this swell of racial nativism… (page 321)

The second reason why it is surprising Mr. Krugman would be supportive of the 1924 immigration law is that because it, combined with other restrictionist maneuvering, blocked many of Europe’s Jews from fleeing the Nazis during the 1930s and 1940s. David Wyman has written in Paper Walls that,

if, in the crucial years from 1938 to 1941, the world had opened its doors to the victims of persecution, the history of Europe’s Jews from 1942 to 1945 would have been significantly different. Instead the barriers held firm and relatively few refugees found asylum. (page xiii)

Mr. Wyman also has noted that although America received more refugees (about 250,000) from Nazism than other countries during the period 1933 to 1945 (p. 209),  “the total response of the United States… fell tragically short of the need.” (preface) According to Mr. Wyman, it was the 1924 law that was the fundamental barrier to the people seeking refuge in the U.S., noting that “the quota limitations formed by far the most significant bulwark against large-scale American rescue of refugees.” (p. 210)

It is difficult to determine the number of would-be refugees who were killed because of U.S. immigration restrictions.  However, the following information from the United States Memorial Holocaust Museum site suggests the large numbers who were put at risk from the restrictions:

In late 1938, 125,000 applicants lined up outside US consulates hoping to obtain 27,000 visas under the existing immigration quota. By June 1939, the number of applicants had increased to over 300,000. Most visa applicants were unsuccessful.

The fate of 908 refugees aboard the ship named the St. Louis who were denied refuge in the U.S. in 1939 is more certain, with 254 perishing in the Holocaust.  Mr. Wyman also notes that other refugee ships, either without a place to land or planning to land illegally in Palestine, sank, drowning hundreds. (pp. 38-39)

Mr. Krugman must surely be bothered by the racist nature of the 1924 legislation and must certainly wish that the U.S. had been more welcoming to refugees during the Nazi period. Furthermore he has noted that he is “grateful that the door was open when my grandparents fled Russia.” Had his grandparents tried to enter America after the 1924 restrictions were in place, they may not have been allowed in and may have perished at the hands of the Nazis.

How does Mr. Krugman square all this with his support for the 1924 immigration legislation? Was the suffering associated with the legislation an acceptable sacrifice in order to ensure that the New Deal legislation could be passed? Mr. Krugman might respond to this question by wishing that the U.S. had adopted a more generous refugee policy during the Nazi period within a system of immigration restriction, but the fact is that the U.S. didn’t.

Of course, even setting aside the history of the American immigration system’s response to the refugees fleeing the Nazis, the suffering associated with immigration restrictions are immense. Co-blogger Nathan Smith challenges Mr. Krugman’s suggestion that the American welfare state is of higher moral value than open borders.  He writes that: 

Krugman wants a social democratic welfare state even at the cost of excluding most of mankind by force. I start from a utilitarian universalist ethics and conclude that its need for immigration exclusion renders the welfare state a moral travesty. 

Nathan argues that a truly moral anti-poverty policy would focus on alleviating the extreme poverty of the Third World rather than the poverty found in the U.S.:  “Domestic redistribution is at best from the very-rich to the relatively-rich.”  He writes that “the best thing America could do for the poor is to open the borders.”

I support both open borders and the welfare state.  Fortunately, perhaps with the use of keyhole solutions, countries may be able to have both. Mr. Krugman should explore this possibility, as well as reconsider his support for the 1924 immigration legislation.

Featured image: Paul Krugman’s press conference following his receipt of the Nobel Prize in Economics, by Prolineserver from Wikimedia Commons.